Update: Jury to start deliberating Wednesday morning in Bridgeport, West Virginia, doctor's fed prescribing trial

Hess is facing 17 counts alleging he unlawfully prescribed Adderall for weight loss to three women (nurses he knew through his work) instead of for attention deficit disorder; three counts alleging he prescribed Xanax unlawfully to an elderly woman who had overdosed on the drug; and one count alleging he obstructed justice by trying to remotely wipe his iPhone’s contents while it was in the custody of law enforcement.

Hess has pleaded not guilty and is presumed innocent.

Northern West Virginia Chief U.S. District Judge Thomas S. Kleeh charged the jury Tuesday afternoon after Hess finished testifying. Cogar and Benninger then gave their final arguments, and Kleeh sent the jury home. Jurors will return Wednesday morning to being deliberations once Kleeh goes over the verdict form.

If convicted, Hess could face up to 20 years in prison and a fine of up to $1 million on the Adderall charges; up to five years in prison and a fine of up to $1 million on the Xanax charges; and up to five years and a fine on the obstructing charge.

Representing U.S. Attorney William Ihlenfeld, Cogar told the jury there are three basic facts to the case: Hess prescribed drugs that were “what the patients (in the case) wanted”; Hess violated basic rules of medicine in doing so; and Hess concealed the truth for years because he knew he had broken the law.

When Hess prescribed dangerous, addictive drugs, he was “often motivated by sexual desire,” Cogar added.

Three patients who received Adderall were nurses who worked for Hess, were trying to lose weight and piqued Hess’s romantic interest, Cogar asserted. He added that it was “pretty striking” that Hess diagnosed all of them with attention deficit disorder, citing a government study that showed just a minuscule number of adults are diagnosed with the disorder. Adderall, an amphetamine, could lawfully be described for attention deficit disorder but not for weight loss, Cogar added.

The defense “wants us to diagnose these patients now with ADD, because he never did. ... He mailed it in because he had ulterior motives. He was not acting as a doctor when he did this,” Cogar said.

As for the woman who overdosed on Xanax and then got the drug again, the defense “drags her into court” and puts her on the stand in a stressful situation to recount tragedies in her life that presaged her two overdose attempts in close proximity, Cogar said.

Benninger countered that the government, despite all its resources and years to do so, didn’t “even talk to her” prior to the trial.

The woman called Hess the “best doctor I ever had” and said he saved her life, Benninger said.

As for the government’s contention that the prescriptions for Adderall and Xanax had no legitimate medical purpose? “Is that right?” Benninger asked. “It’s almost as if I was in an alternative place for the last seven days.”

The government’s case was built on “evidentiary distraction” and “red herrings,” the defense attorney added.

And a government contention that the Board of Medicine “found anything wrong with his medicine is false,” Benninger said.

Hess admitted ethical violations, including having sex with a patient, and paid a high price for taking responsibility for his action: He lost his license to practice medicine in West Virginia, Benninger said.

As for Cogar’s contention that Hess couldn’t keep separate his private romantic life from the office? “One touch, kiss, slap on the butt, smart comment in the office, we would have heard about it,” Benninger said. “It didn’t happen. That was a holy place for him. ...”

Benninger also referred to the government, DEA and other investigators as “big brother,” and he asked the jury “to have the courage ... to tell this government, ‘No. Not in this case, because this doctor” acted within the bounds of legitimate medical practice.

“He sure practiced damned good medicine for his patients,” Benninger added. “... If you think he’s a lyin’, fakin’ doctor, find him guilty. If you don’t, then like the court said, find him not guilty.”

With the burden of proof, Cogar got the first word and the last.

After watching Benninger repeatedly point at the prosecution table and raise his voice while belaboring the government like an evangelist or an old-school lawyer, Cogar struck back.

“The defense accuses us of distractions, which is perhaps the most ironic thing I’ve ever heard in any courtroom in my career,” Cogar said.

During cross-examination, Cogar gave jurors this to chew on:

— A patient had texted Hess asking him if she could have Adderall for weight loss, which isn’t an authorized use of the amphetamine;

— The patient had told him in another text that she’d taken someone else’s Adipex, a controlled substance, in violation of the law;

— The patient admitted in another text that she’d smoked marijuana, violating the narcotics contract she’d signed with Hess.

Cogar then asked: Did Hess, having this knowledge and more, beforehand, figure the woman, a nurse and a patient, owed him one for prescribing the Adderall?

And when Hess denied that, Cogar presented another set of texts — from hours after the medical appointment.

Hess wrote that he “would have loved to kiss” the woman, then went on to discuss, in ribald language, touching her in a sexual manner. Hess also texted that if she could get a babysitter, that he could come by and they could “(expletive) for a couple hours.”

The woman appeared to be rejecting his advances by using various excuses, and it also appeared from the texts that Hess realized that’s what she was doing.

After six hours of testimony Monday in which Benninger painstakingly took Hess through the charts and prescriptions for each of the four patients involved in 20 prescription-related counts against the doctor, Cogar was busy early Tuesday working to try to unravel all that.

Hess may have helped Cogar out by refusing to answer questions with a simple yes or no.

At some points, Hess also would say he couldn’t remember his testimony from the day before and needed to see his charts, while at other times, on matters favorable for his case, he was able to pull out details from other witnesses’ testimony last week.

Other times, Hess would start to launch into a detailed explanation.

Judge Kleeh told Hess at least three times to stick to “yes” or “no” answers, another factor that could be considered by jurors.

Hess said at one point that “I think it’s important to explain why you did things. Just ‘yes’ or ‘no’” doesn’t explain that.

Under federal sentencing laws, it’s possible that if Hess were convicted of all charges, the counts could be joined into a sentence of not more than 20 years and a fine of not more than $1 million, with an enhancement for obstruction figuring in the calculation for what Kleeh might hand down.

The government has contended that Hess prescribed the Xanax and Adderall without conducting the necessary work with patients. In a similar case involving oxycodone distribution, a New Jersey doctor was sentenced Tuesday to 2 years in federal prison.

Both sides in the Hess trial have presented experts in prescribing practices: Dr. Carol Forster of Northern Virginia for the government and Dr. Michael Yaffe of Columbus, Ohio, for the defense. Each expert came under withering cross-examination: Forster from Benninger co-counsel Tim Linkous; Yaffe from Cogar. The lawyers also disparaged each other’s expert in closing arguments.

Hess surrendered his license in a 2023 consent order with the West Virginia Board of Medicine.

In October 2009, Hess entered into a prior consent order with the state Board of Medicine under which he was placed on licensure probation for five years, was fined $1,000 and was publicly reprimanded “for his gross negligence in the use and control of prescription forms, pre-signing blank prescription forms and for his unprofessional conduct.”

Assistant U.S. Attorney Eleanor Hurney also is on the case for the government.

The Drug Enforcement Administration led the investigation.